Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Argument recap: No easy answers in Indian adoption case

Posted Tue, April 16th, 2013 1:21 pm by Amy Howe

Having tackled gene patenting yesterday, today the Justices returned to the bench to hear oral arguments in Adoptive Couple v. Baby Girl, which has also garnered a lot of attention, primarily because of its heart-wrenching facts. At issue is whether an unwed biological father who initially renounced his custodial rights to his daughter can rely on a federal law – the Indian Child Welfare Act – to block her adoption by the couple who had cared for her since birth. Unlike yesterday, however, there were few signs either that the Court was moving toward any form of consensus or that any form of middle ground might be possible.

Lisa Blatt, representing the Adoptive Couple from South Carolina who cared for Baby Girl for the first twenty-seven months of her life, began by emphasizing that even if the biological Father is a “parent” for purposes of ICWA, he still cannot avail himself of the two procedural protections provided by the statute in Section 1912(d) and (f). The former requires the party seeking the involuntary termination of parental rights to show that “active efforts had been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful,” while the latter allows the termination only when there is a “determination, supported by evidence beyond a reasonable doubt. . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Those provisions do not apply here, Blatt argued, because Father did not have an ongoing relationship with Baby Girl that could be broken up.

This line of argument fell flat with at least three Justices – Scalia, Ginsburg, and Sotomayor – who throughout the argument generally regarded the case as covered by the plain language, even if not the purpose, of ICWA. Justice Elena Kagan’s vote was less certain, but she also seemed to at least be leaning that way: she pressed both Blatt and Deputy Solicitor General Ed Kneedler, representing the federal government as an amicus, to explain why, if Father is a “parent” for purposes of ICWA, he wouldn’t also be able to rely on the protections of Sections 1912(d) and (f). What, she asked Blatt, is the point of labeling Father as a “parent” if he doesn’t have any rights as such? Returning to this topic again later, Justice Kagan suggested that the Adoptive Couple’s construction of the law would effectively create two classes of parents under the statute – those with the protections provided in subsections (d) and (f), and those without. If Congress intended to do so, she queried, why didn’t it say so more explicitly?

At least three other Justices – the Chief Justice and Justices Breyer and Alito – seemed inclined to agree with Blatt and interpret ICWA more narrowly, particularly given what they clearly regarded as Baby Girl’s somewhat tenuous link to the Indian Tribe in question, the Cherokee Nation. Thus, the Chief Justice expressed some astonishment that “one drop of blood” could “trigger[] all these rights” under ICWA; both he and Justice Alito also tried to test the limits of the position taken by Charles Rothfeld, representing the Father, by asking him about a scenario in which the Tribe would allow virtually anyone to join the Tribe, regardless of whether the would-be members had any actual Indian ancestry. On this point, Justice Scalia chimed in to suggest that the hypothetical was a “null set” because there are federal criteria, including some blood relationship, that must be met for a Tribe to receive federal recognition. Rothfeld countered that in this case Father has significant ties to the Cherokee Nation, but in any event this is an issue that Congress or the executive branch can address.

The Chief Justice – himself the father of two adopted children – was also obviously troubled by the Father’s lack of support for the Mother and Baby Girl before he sought to block the adoption: in response to Rothfeld’s assertion that Father was engaged to Mother and excited about the pregnancy before the two broke up, he interrupted to note that Father had “paid nothing.” He added, somewhat sarcastically, that Father may have been “excited,” but he “didn’t want to take responsibility.”

As is his normal practice, Justice Clarence Thomas – who is also an adoptive parent – did not ask any questions at oral argument. (Before oral argument started, however, he did announce the second opinion of the Court today, in Genesis Healthcare Corp. v. Symczyk. Justice Kagan had announced the first opinion of the day, vacating the decision of the Third Circuit in an ERISA case. Thomas began by noting that Genesis “comes to us from the United States Court of Appeals for the Third Circuit.” He then quipped, “[a]nd I don’t have good news for them either.”)

With Justice Thomas’s vote very difficult to predict, that could leave Justice Anthony Kennedy as the decisive Justice once again (as in the two cases decided today). At one point in the argument, Justice Kennedy noted that family law cases are among “the hardest problems for judges” – especially in this case, when the Court is faced with the task of construing a “federal statute that displaces the ordinary best interests determination” made in family law cases by state courts. At another point in the argument, during a series of questions and answers about whether the state courts’ decision awarding custody to the Father did in fact consider the best interests of Baby Girl, he observed that the lower courts’ finding – pursuant to Section 1912(f) – that awarding custody to the Father would not result in serious emotional or physical damage to Baby Girl was not the same as a finding that awarding custody to Father would be in her best interests. And he alone expressed any real concern about whether the South Carolina courts’ interpretation of the ICWA would, as Adoptive Couple and Baby Girl’s guardian ad litem argue, create constitutional problems by treating Baby Girl (among others) differently on account of her race.

In her rebuttal, Lisa Blatt flatly warned the Court that if it affirmed the South Carolina Supreme Court’s decision, it would “basically [be] banning the interracial adoption of Indian children,” rendering non-Indian women who have children with Indian fathers “second-class citizens,” and sending would-be adoptive parents “to the back of the bus.” As those remarks confirm, this is a case in which emotions are running high; after this morning, the Justices are no doubt glad that they are not normally called upon to resolve family law disputes. Indeed, at one point in the argument Justice Alito asked Charles Rothfeld why, if the case might have come out the same way under South Carolina law even if ICWA did not apply, “are we here?” But no one else seemed interested in that question, and so it appears that the Court almost certainly must resolve this case by the end of June. And unfortunately for all involved, when it does so, the decision is likely to fan rather than squelch the emotion.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]